HKSAR v. WANG MAOHUI AND ANOTHER

DCCC 754/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 754 OF 2011

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Reasons for Sentence

1.  D1 and D2 appeared before me and pleaded guilty to a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The subject matter of the charge are 5.4 kilogrammes of chips and roots of  Aquilaria Sinensis wood commonly known as “Incense Tree”.

The facts

2.  At about 1850 hours on 30 May 2011 two uniform police officers spotted D1-2 acting furtively at a bus stop near a hillside in Sheung Wo Hang, Sha Tau Kok Road, New Territories. Suspecting them to be illegal immigrants, the officers approached them for enquiry. However, upon seeing this, both Defendants tried to flee. The two police officers managed to subdue D1 but D2 was able to escape. The officers then searched D1 and the two rucksacks he was carrying. Upon searching, four blocks of the Aquilaria Sinensis wood with the total weight of 5.4 kilogrammes were found in four different black plastic bags inside the rucksacks together with some tools like one knive, two hoes and one handsaw.

3.  Under caution, D1 admitted that he cut the blocks of wood at an unknown hillside near the place of his arrest with D2 earlier in the day and he would sell them in mainland China.

4.  D2’s was meanwhile put on the watchlist by the police. He later surrendered to the police on the next day and claimed himself to be an illegal immigrant with a different name. In the mean time, he was sent to a the San Uk Ling Holding Centre pending repatriation. Upon arrival, he was suspected to be the wanted person in this case so he was arrested and cautioned. Under caution, D2 told the police his real name and he admitted taking part in stealing trees. He subsequently explained in another interview that since he left his travel documents so he could not return to the mainland and he surrendered himself to the police and claim to be an Illegal immigrant using a different name.

5.  The woodblocks were subsequently examined by Mr. KS Pang, a conservation officer of the Agriculture Fisheries and Conservation Department and found to consist of wood pieces, wood chips and two roots of ‘Chen Xiang” tree or “incense tree” weighing a total of 5.4 kg with an estimated value of HK$361,800.  He opined that recently due to illegal cutting, large and old individuals of Aquilaria sinensis have since become rear in Hong Kong. He is of the view that the unsustainable felling of the species has caused irreplaceable damages to the general natural feature and ecology of the natural forests. According to Mr. Pang, there is an increasing trend reflected by numerous reports that the species has been illegally exploited, threatening the survival of such trees in the natural environment.

The backgrounds of the Defendants

6.  In this case, both defendants have clear records in Hong Kong.  D1 is 42 and D2 is 23 years of age. Both are unemployed and they came from Guangdong Province to Hong Kong as two-way permit holders only one day before they were arrested.   Through their lawyer, they have both expressed their remorse and submitted to the court letters of mitigation. I am not going to refer to each of the letter. Suffice it to say that they are clearly worried about their family circumstances after their arrest and they all ask the court to be lenient so that they can come back to take care of their families in the Mainland earlier.

Sentencing Considerations

7.  In sentencing, I have considered the recent case of HKSAR v. Xie Jinbin (CACC 195/2010) which was relied by the defence.  The Court of Appeal was dealing with an appeal of sentence from a Mainlander, who together with two other counterparts from the Mainland, stole wood blocks of incense tree of a total weight of 1.181 kilogram and they affirmed the decision of the District Court to adopt the 3 years as starting point and the 25 per cent enhancement for prevalence of the offence under the Organized and Serious Crimes Ordinance (“OSCO”).  In explaining this decision, the Court of Appeal has expressed in the following terms:

“23…. The applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit. They equipped themselves with a knife, hoe and saw. They acted as a group. The offence was clearly premeditated. The four of them were seen cutting the tree and packing the blocks into their rucksacks, though only three of them were arrested. The offence is one which calls for a deterrence…”

In HKSAR v. Wen Zelang [2006] 4 HKLRD 460, another case dealing with Mainlanders cutting incense trees, the Court of Appeal referred to Hong Kong’s international obligation under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the “Convention”). In delivering the judgment, Yeung JA (as he then was) said:

“15. In our opinion, the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.

16. A clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddhist Pines or incense trees. In our view, neither the three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”(emphasis added)

8.  It should be noted that in Wen Zelang (supra.), the appellant and three others were intercepted on a bus in Lantau Island during an identity card check.  They were found in possession of 5.6 kilogram of wood blocks from incense trees, a quantity which is nearly identical with the present case.

9.  In my view, the facts of the present case are exactly on all fours with the authorities cited above.  Over the past years, there had been numerous attempts by peoples from the Mainland who were driven by profits, came to Hong Kong, either legally or even illegally, cut the endangered wood blocks from our plants in the territory causing irreparable damages to our environment.  In the above authorities, the Court of Appeal has clearly expressed its view that a deterrent sentence is necessary for this type of offence.   Powerful message must be sent to their friends and relatives in the Mainland that people like these two defendants would be dealt with severely by the court in Hong Kong. 

10.  Paragraph 17 of HKSAR v. Xie Jinbin (supra.) also said:-

“A starting point of three years for case of extraction of wood from an incense tree by mainlanders could not be faulted. We do emphasis that the starting point is not meant to be a strait-jacket.”

11.  In my view, the starting point of the present case should still be 3 years in order to properly reflect the gravity of the case.  There is no exceptional circumstance which can justify a more lenient sentence. Although I have sympathy for the family members of the Defendants in the Mainland but the Court of Appeal had said in many cases that family circumstance virtually played no part in mitigation especially in serious offence such as the present. Otherwise, the sentence would lose its deterrent effect and the legislative intent to protect our endangered trees could not be achieved.

12.  There being no special circumstances, the only mitigation is their pleas of guilty for which they would receive the customary one-third discount.  The sentence is therefore reduced to 24 months for each Defendant.  

Enhancement of the sentence

13.  The Defence has objected to the application of the prosecution pursuant to section 27(2) (d) of the OSCO, Cap. 455 to enhance the sentence. Mr. Lee, appearing for both Defendants argued that there is no evidence that the woods were cut indiscriminately from the trees thereby causing irreparable damages to the environment. In reply, I was shown by the prosecution a numbers of photographs showing the chips and roots of the wood cut by both Defendants in this case. In my judgment, it is clear to everyone looking at the photographs that they were as a result of illegal exploitations and there is clear evidence that they were cut or felled for extraction of wood to the extent that such trees were damaged and unlikely to be able to recover. The acts of Defendants, like many of their predecessors from the Mainland would threaten the natural survival of the native plant Aquilaria Sinensis and is causing harm to the community.

Order

14.  Accordingly, I would allow the application and decided to follow the authorities and enhance the sentence by 25%, making a total term of imprisonment of 30 months for each Defendant.